Swinnerton v. Monterey County

McKinstry, J. W. V. Me Garvey was tax collector of Monterey County for two years from the first Monday in March, 1878, and U. Hartnell held the same office from the first Monday of March, 1880, to the first Monday of January, 1883.

The plaintiff herein, an attorney at law, claims to have entered into a contract with the defendant whereby he was employed to collect commissions unlawfully retained by the tax collectors of the county, the county agreeing to pay him for such service thirty per cent of the amount he should recover and collect; that under such employment he commenced actions against tax collectors McGarvey and Hartnell, and their respective bondsmen, to recover commissions illegally retained by them; but that, after the commencement of said actions, the board of supervisors (by order in regular form) directed the district attorney to dismiss the actions, which was done, and that the county thereby prevented him from earning the thirty per cent he would have recovered had he been permitted to prosecute the suits.

Passing all other questions, the plaintiff ought not to recover in this action if he could have recovered nothing [115]for the county, in case he had prosecuted to judgment the actions against McGarvey and Hartnell. He could have recovered nothing unless the commissions sued for were illegally retained or paid to the tax collectors named.

There is no dispute here as to the amounts retained by tbe two tax collectors. And it must be conceded that if the act of March 16, 1872 (Stats. 1871-72, p. 419), fixed the compensation of the tax collector when McGarvey and Hartnell were in office, each of them was entitled to retain or to receive the sum by each retained.

The act of March 1, 1872 (Stats. 1871-72, p. 178), provided that the tax collector of Monterey should receive for collections of state and county taxes four per cent on the first ten thousand dollars, two per cent on all amounts over ten thousand dollars and less than twenty thousand dollars, and one and one half per cent on all moneys over twenty thousand dollars. By the act of March 16, 1872, it was enacted that the sheriff of Monterey should receive six per cent on the first ten thousand dollars collected for state and county taxes, four per cent on all over ten thousand dollars and less than twenty thousand dollars, and two per cent on any amounts more than twenty thousand dollars. The last act repealed all acts in conflict therewith.